The Faculty Lounge

Why Didn't Justice Ginsburg Resign in 2014?

There are many good reasons – both humane and political – to wish Supreme Court Justice Ruth Bader Ginsburg a speedy and complete recovery from her recent lung cancer surgery. Nor is it cynical to hope that she returns to good health at least through the end of the Trump presidency, which looks to be January 20, 2021, at the earliest. That hope, of course, brings with it an inevitable question: Why didn’t she resign in 2014, when Barack Obama was president and Democrats still controlled the Senate? At the time, Ginsburg was 81 years old and had already been through two rounds of cancer surgery, yet she famously said that she would stay on the job as long as she could do it “full steam.” In a recent Slate interview, Dahlia Lithwick provides some well-informed speculation about Ginsburg’s reasoning.

According to Lithwick’s sources, Ginsburg declined to retire out of resistance to sexism. After all, “nobody was demanding that John Paul Stevens retire,” and he was 90. That would indeed seem to be a double standard, except that there was actually no need to urge Stevens’s retirement. He announced it himself on April 9, 2010, four years before anyone began questioning Ginsburg’s intentions. Justice David Souter had been even quicker to ensure that Obama would get to name his successor, announcing his own retirement on April 30, 2009, at age 69. It is true that Justice Stephen Breyer was not called upon to resign during the Obama administration, but he is five years younger than Ginsburg and has not battled cancer.

New Riders of the Purple Sage

The New Riders of the Purple Sage opened for the Grateful Dead at the famous Berkeley Community Theater concert in the summer of 1971 -- from which I was kicked out, which led to my first successful lawsuit.

"Hello Mary Lou"

It’s Not Just Football

If recent history is any guide, the National Football League’s AFC and NFC championship games on Sunday afternoon will be viewed by over 60 million people. Viewership for the Super Bowl on February 3 will likely exceed 100 million. When combined with gate receipts and merchandising, the television viewership translates to massive revenues for NFL owners. In 2017 alone the NFL generated $14 billion in revenue, the most of any professional sports league in North America.

But no one can confidently predict what football’s long-term future holds. Yesterday ESPN’s website posted a fascinating and important piece on the disappearing insurance market for football. The article, which is titled For the NFL and all of football, a new threat, is authored by Steve Fainaru and Mark Fainaru-Wada. In 2014 they wrote the book League of Denial: The NFL, Concussions, and the Battle for Truth, which detailed the NFL’s unconscionable campaign to conceal the scale and gravity of the health threat posed by sports-related concussions.  

The ESPN article explains how the rising tide of concussion-related lawsuits has driven insurers to flee the football marketplace. As Fainaru and Fainaru-Wada explain:

Cognition Errors for Doctors and Everyone Else

As I have written before, the website Science Based Medicine is a daily must-read for anyone interested in developments in medicine, or simply in critical thinking. The five or six bloggers on the site have various specialties (one is even a lawyer), but they all bring rigorous evaluation to their very accessible writing. Most of the posts, though not all, are devoted to debunking so-called alternative treatments, but they are always open-minded and evidence-based.

One recent post was a book review, discussing Jonathan Howard's Cognitive Errors and Diagnostics Mistakes: A Case-Based Guide to Critical Thinking in Medicine, which is well worth reading. As the reviewer, Harriet Hall, explains, cognition errors are common in medicine, as they are in every other profession. Let me add that many of the thought patterns identified by Dr. Howard, via Dr. Hall's review, will be immediately recognized by lawyers: we regularly see them in judges, jurors, witnesses, and ourselves -- although the latter instantiations are the most difficult to detect, or acknowledge, or especially to remedy.

The book is 558 pages long, covering six major areas, as described by Hall:

Errors of overattachment to a particular diagnosis;

Errors due to failure to consider alternative diagnoses;

Errors due to inheriting someone else's thinking;

Errors in prevalence perception or estimation;

Errors invovling patient characteristics or presentation context;

Errors associated with physician affect, personality, or decision style.

SCOTUS Needs an Ethics Code

I have a piece on Slate this morning, once again addressing the absence of a Code of Conduct for the U.S. Supreme Court. Here are some key paragraphs:

The first bill introduced this year in the Democratic-controlled House of Representatives had nothing to do with the border wall, the government shutdown, the troops in Syria, or other issues that have dominated recent headlines. Instead, the “For the People Act”—or HR 1—is devoted to government integrity, covering voting rights, campaign finance reform, and ethical standards. Among many potentially controversial and complex provisions, there is one that stands out for its simplicity: requiring the adoption of an ethics code for the U.S. Supreme Court. The fact that SCOTUS justices are the only nine judges in the United States who do not have a written code of ethics is not just a symbolic problem, but a very meaningful one that requires just this sort of legislative solution.

Democrats have repeatedly introduced legislation requiring the Supreme Court to adopt an ethics code, but the previous Republican House leadership never allowed it to come to the floor. Although the confirmation of Supreme Court justices has become increasingly rancorous, judicial ethics ought to be a nonpartisan issue. A written code would apply equally to liberal and conservative justices, thus covering Justice Ruth Bader Ginsburg’s disparagement of then-candidate Donald Trump in the months before the 2016 election as well as Justice Samuel Alito’s appearance at a fundraiser for the right-leaning Claremont Institute. Both incidents would have violated specific ethics rules for every other U.S. judge, but not for the justices. Ginsburg eventually apologized for what she called “ill-advised” comments and promised to be “more circumspect” in the future; Alito declined to comment.

You can read the entire article here.

The Great Molasses Flood of 1919

Today marks the 100th anniversary of the Great Molasses Flood. Despite its absurd-sounding name, the flood was a grave and tragic event for the city of Boston. Shortly after 12 noon on January 15, 1919, a massive storage tank burst and sent a deadly wave of molasses flooding across two city blocks in Boston’s North End. By the time the molasses came to a stop, 21 people had died and more than 100 had suffered serious injuries.

The flood likely resulted from a design flaw that made the storage tank vulnerable to temperature fluctuations. The Purity Distilling Company and its parent corporation, United States Industrial Alcohol, paid little heed to safety. They built a poorly constructed tank in the middle of a busy wharf district. The owners also had advance notice of trouble. The tank leaked so much that neighborhood children frequently came by to taste the molasses streaming down the sides of the structure. Months before the disaster, the foreman repeatedly warned management that the tank could explode, but his superiors brushed aside his concerns. As gases built up within the tank, its walls began to vibrate ominously. When the tank finally erupted, the wave of molasses that roared out of it weighed 20 million pounds, stood 25 feet high, and moved at 35 miles per hour. No one in its path had a chance.

University of Miami Law Seeks Dean

This just in:

The University of Miami invites nominations and applications for the position of Dean of the School of Law. The next Dean should be an innovative thinker and approachable leader who welcomes the opportunity to articulate a vision for the growth of a law school that builds on its long history of excellence.

The University of Miami, considered among the top tier institutions of higher education in the U.S. for its academic excellence, superior medical care, and cutting-edge research, is the largest private research university in the southeastern United States. The University comprises eleven degree-granting schools and colleges, which are Architecture, Arts and Sciences, Miami Business, Communication, Education, Engineering, Law, the Miller School of Medicine, the Patricia and Philip Frost School of Music, Nursing and Health Studies, and the Rosenstiel School of Marine and Atmospheric Science. The core of the University is its 2,660 full-time faculty housed in three academic campuses within the greater Miami area.

The University receives over $360 million annually in external research funding and has been classified as a Doctoral University with Highest Research Activity (R1) by the Carnegie Commission.

We strive to create an environment where everyone contributes to making UM a great place to work through our values of Diversity, Integrity, Responsibility, Excellence, Compassion, Creativity, and Teamwork (DIRECCT).

The University of Miami School of Law, located on the 260-acre main campus, has over 100 faculty members and an enrollment of about 1200 students. In addition to the juris doctorate degree, the Law School offers a range of LLM degree programs, from its nationally ranked tax program to the innovative Entertainment, Arts, and Sports Law. The Law Schools offers joint degrees with several of the university’s premier graduate schools.

The Dean, reporting to the Executive Vice President & Provost, is the School of Law’s chief academic officer with overall responsibility for its academic programs, operating budget, personnel management, strategic planning, public relations, and fundraising. The Dean is also the School of Law’s principal representative to the University, alumni, and the legal community. The School is seeking a person with a national/international reputation, high energy, enthusiasm, and vision to lead the faculty. The School consists of an interdisciplinary group of scholars, creative faculty and practitioners. The candidate should be able to build upon this balance and continue to foster these values to encourage scholarship, develop innovative educational programs, and engage our local community.

The successful candidate must demonstrate strong interpersonal, managerial and leadership skills, and be able to foster an internal culture of excellence. The position requires an individual who can lead effectively and manage a large and dynamic school in a multi-campus research university. Candidates must have credentials appropriate for a tenured appointment at the rank of professor.

Leadership experience with responsibility for strategic management of personnel, programs, and resources is strongly desired.

Review of candidates will begin immediately and continue until the position is filled. Applications must include a letter of interest and curriculum vitae. All inquiries, nominations/ referrals, and applications should be sent electronically and in confidence to: MiamiLawDean@kornferry.com.

Biblical Hermits

Yesterday's New York Times Book Review includes the following sentence from Charles Graeber’s The Breakthrough: Immunotherapy and the Race to Cure Cancer, as quoted in a review by Mimi Swartz:

[He was] a tall, gaunt man with the glandular severity of an Old Testament hermit.

My religious education could be generously described as minimal, but I am not aware of any hermits in the Hebrew Scripture, so I put the question to some more knowledgeable friends. Are there any hermits in the so-called Old Testament (more on naming choices below)?

The first answer came from Rev. Robert Clarke, an Episcopal priest and my occasional coauthor:

Hermits as a religious or spiritual pursuit [are] almost antithetical to Hebrew Scripture.  The tradition and teachings of Judaism almost always point to community life and how the chosen people ought to live in relationship to Y--- and each other.  The hermitical life is led in isolation and away from society.  The word itself means desert dweller and comes from the Greek "ερημίτης."

Having said that, many Christian writings of the solitary life point back to Elias (or Elijah) as having been the first example (1 Kings 17 - 19, and 2 Kings 1 - 2) of a hermit for the Y--- told him to go live under a rock and there he would be fed by ravens.  However even he gathered around him followers, Elisha chief among them, thus again living in community.  There are others, Jacob and even David, but they lived in the desert not to spiritually purify themselves but to escape the wrath of others.

Richard Wirtz

Richard Wirtz  has passed on January 3, 2019.  He was dean of the University of Tennessee from 1991 to 1998.  He was graduated from Amherst, Princeton University, and Standford Law School.

H/t Joan Heminway 

Wildwood Flower

One of the most famous and beloved American folk songs, "Wildwood Flower" was first published as sheet music in 1860, composed by Joseph Philbrick Webster. It was recorded by the original Carter Family (Maybelle, Sara, and A.P.) in 1928, and covered thousands of times since in both vocal and instrumental arrangements. It is one of the most recognizable tunes in the American songbook.

Maybelle Carter (if you look carefully, you can see Earl Scruggs at the left of the screen):

Comment Policy

This seemed like a good time to post a reminder about my comment policy:

This blog allows both pseudonymous and fully anonymous comments. I may respond to the former from time to time, but I will not engage with the latter.

I will delete comments in the following circumstances:

When they include personal attacks or insults (allowing slightly more latitude when I am the target);

When they are irrelevant, intemperate, whiny, or repetitive;

When they include lengthy rants;

When they devolve into long, tedious exchanges;

When they include questionable links that were not caught by the spam filter.

The deletion of comments is within my sole discretion, which I will attempt to exercise reasonably and sparingly (with no guarantee that individual readers will agree with it). Please don't complain about "unfairness," as no one will reliably know which or how many other comments have been deleted. 

Finally, most comments with hyperlinks are automatically sent to the spam folder. I try to check the folder every few hours following a new post, so that I can release the valid ones. That is not always possible, however, so please have patience.