The Faculty Lounge

Judicial Ethics and School Prayer

My new essay at Law & Crime, explains how the SCOTUS supermajority should have paid more attention to judicial ethics in their recent decision allowing prayer on the high school football field:

Supreme Court Should’ve Looked to Judicial Ethics Rules When Deciding High School Football Field Prayer Case

Steven Lubet Jul 5th, 2022, 12:05 pm

The recently completed U.S. Supreme Court term featured the sweeping handiwork of the new Republican supermajority, who upset long-standing precedents in pursuit of their conservative vision of American society. With the three liberal justices virtually always in dissent, the court eliminated women’s right to reproductive choice, restricted states’ abilities to enact gun control statutes, and crippled the federal government’s efforts to combat climate change. The majority justices were so keen to enhance the role of religion in public schools that they blew past an analogous principle of judicial ethics that every one of them had accepted in the past.

It might seem obvious that the First Amendment’s Establishment Clause would prohibit a high school football coach from leading his students in Christian prayer while kneeling at midfield following a game. The coach, after all, is the epitome of an authority figure, with the sole and unreviewable power to decide which kids will get meaningful playing time and who will be recommended to college scouts. But that is exactly what Coach Joseph Kennedy did at Bremerton High School in Washington State, eventually attracting crowds of players from his own and even opposing teams. He refused to stop when ordered by the school board, which led to his firing. Kennedy took his case to the U.S. Supreme Court, where the six-justice majority ruled in his favor in Kennedy v. Bremerton School District, stating that Kennedy had been impermissibly punished “for engaging in a personal religious observance.”

But what about the rights of any non-Christian students who might have experienced silent pressure to join the prayer, or perhaps felt alienated or even outcast because they refrained? That is no concern of the court’s, according to Justice Neil Gorsuch‘s majority opinion, because the Bremerton School District “admitted that it possessed ‘no evidence that students have been directly coerced to pray with Kennedy.'” In other words, the coach’s discomfort over being told to pray off-field takes precedence over any students’ sense of religious intimidation or exclusion, so long as there is insufficient “evidence that coercion actually occurred.”

Justice Sonia Sotomayor‘s dissenting opinion, joined by Justices Elena Kagan and Stephen Breyer, clearly revealed the flaws in the majority’s “toothless version of the coercion analysis,” which failed to acknowledge the “unique pressures faced by students when participating in school-sponsored activities.” It should not have been necessary for the dissenters to explain that “indirect coercion” is a very real phenomenon in high schools, and that “subtle coercive pressures,” especially from teachers and coaches, may impel students to participate in religious activities “they might otherwise reject.” This is especially true in the case of a football coach, who is in a position to provide players with discretionary benefits, such as “extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”

Twinette Johnson Named Acting Dean of UDC Law

The University of the District of Columbia has announced that Associate Dean Twinette Johnson will be the law school's acting dean effective August 1.  She replaces Renée Hutchins who is departing to lead Maryland Law.  Johnson, who joined UDC in 2017, holds a JD from Tulane and a Ph.D from Saint Louis University.

New Comment Policy

At the urging of readers, I have adopted a new comment policy, effective immediately. Following the lead of law blogs such as Prawfs, Dorf, Balkinization, and Leiter, as well as general interest sites such as CNN.com and The Hill, comments will be closed on most political, legal education, and law-oriented posts (with occasional exceptions).

Comments on the Saturday music blogs will remain open for the time being, as they have been mostly (but not entirely) free of the whiny, humorless, repetitive, trollish comments that have prompted so many complaints. Comments on music posts will continue to be subject to the previously announced policy.

Happy Fourth 2022

Stars and Stripes Forever

And here is Guy Van Duser himself, demonstrating just how difficult his arrangement is to play:

94 piccolos

No piccolos (marimbas instead)

Note: the story that fifteen year old Bob Heft designed the current 50-star flag in 1959 (in a caption above) is apocryphal.

Guitar duet

 

And here is Guy Van Duser himself, demonstrating just how difficult his arrangement is to play:

94 piccolos

No piccolos (marimbas instead)

Note: the story that fifteen year old Bob Heft designed the current 50-star flag in 1959 (in a caption above) is apocryphal.

Guitar duet

 

Lovin' Spoonful

The Lovin' Spoonful was formed in Greenwich Village in the 1960s by John Sebastian and Zalman Yanovsky. Sebastian had grown up in the Village, where his father, a classical harmonicist also named John Sebastian, had been a fixture on the music scene for many years. Yanovsky, a Canadian, had been in a group called the Mugwumps, along with Cass Elliott and Denny Doherty, later of the Mamas & the Papas. Drummer Joe Butler and bassist Steve Boone were recruited before the group's first recording session. Yanovsky was eventually kicked out of the band when he objected to what he considered its increasing commercialism -- his drug bust and potential deportation didn't help -- returning to Montreal where he opened a restaurant. He was replaced by Jerry Yester, also kicked out when he was arrested for child pornography.

The Spoonful continued performing with various lineups for many years. Sebastian had a solo career. There were a few reunions.

Posting this today because they were one of the few American groups to resist the British invasion.

Pace Law School Faculty Hiring

Pace Law School is planning to make two hires, each to begin in Fall 2023: one tenure-track hire and one VAP.  Details below.

Elisabeth Haub School of Law Faculty Hiring Announcement

Tenure Track Professor

The Elisabeth Haub School of Law at Pace University, located just outside of New York City in White Plains, New York, expects to hire one or more full-time law professors to join our faculty beginning in the 2023-24 academic year. We welcome candidates in any field, and have a particular need in Business Law.  We seek candidates with valuable professional and/or scholarly experience, a distinguished academic record, and a record of, or great potential for, scholarly    achievement and exemplary teaching.  We welcome applications from both entry-level and junior lateral candidates.

Part of Pace University, a private university with campuses in Manhattan and Westchester County, the Elisabeth Haub School of Law is centrally located within the New York metropolitan area.  Haub Law is home to the New York State Judicial Institute, seven clinics, an extensive externship program, and an engaged faculty, making the school a central part of the New York State and New York City legal communities. Haub Law is also home to the nation’s #1 ranked environmental law program as well as top-ranked dispute resolution and trial advocacy programs.

Haub Law is committed to achieving equal opportunity in all aspects of University life, increasing the diversity of the campus community, and creating a more just, equitable, and inclusive institution.  Candidates who have experience working with a diverse range of faculty, staff, and students, and who can contribute to a climate of inclusivity, are encouraged to identify their experiences in these areas. 

Interested candidates should apply via the following link: https://careers.pace.edu/postings/20361  The application should include a cover letter, curriculum vitae or resume, and list of at least three references, and be addressed to Professor Randolph McLaughlin (RMcLaughlin@law.pace.edu), chair of the Faculty Appointments Committee.

Visiting Assistant Professor

The Elisabeth Haub School of Law at Pace University in New York seeks to hire a Visiting Assistant Professor (VAP) for the academic year 2023-2024, or to start in January of 2023. The VAP will hold a one-year appointment (18 months if beginning in January of 2023), and that appointment shall be presumptively renewable for a second one-year term. The appointment is designed to mentor and train future law professors and prepare them for the law school teaching market. Pace Law is committed to increasing the diversity of the legal academy; for this position, we are seeking candidates who are interested in teaching and scholarship in any area of law.

The VAP will have a teaching load of one course per semester and the opportunity to focus on scholarly research and writing. The VAP will receive the same office and administrative support as other faculty members, is invited to participate fully in faculty activities, and will receive a small travel and research fund. The VAP will receive feedback and mentoring from faculty members and will present a work-in-progress to the faculty at our weekly scholarly colloquium.

Applicants for the Visiting Assistant Professor position should submit:

• • Cover letter (discussing qualifications and interests)
  • Curriculum Vitae (that lists three references and law school courses the candidate would be interested in teaching)
  • Law school transcript
  • One published scholarly article or an unpublished paper draft or prospectus that reflects the candidate’s scholarly interests and potential

Part of Pace University, a private university in Manhattan, The Elisabeth Haub School of Law is located in White Plains, New York, just a short train ride from city. Haub Law is home to the New York State Judicial Institute, seven clinics, an extensive externship program, and an engaged faculty, making the school a central part of the New York State and New York City Legal communities. Haub Law is also home to the nation’s #1 ranked environmental law program as well as top-ranked Dispute Resolution and trial advocacy programs.

Haub Law is committed to equity, justice, inclusion, belonging, and diversity in all its forms – race, culture, sexual orientation, gender identity and gender expression, socioeconomic status, religion, abilities, and more. We actively seek to create a community that is inclusive and welcoming through inclusive policies, practices, and programming. We value and celebrate our diverse community as we endeavor to create a more just world. We seek to hire faculty, including visiting faculty, who will actively contribute to these efforts.

Interested candidates should apply via the following link: https://careers.pace.edu/postings/19801  The application should include a cover letter, curriculum vitae or resume, and list of at least three references, and be addressed to Professor Randolph McLaughlin (RMcLaughlin@law.pace.edu), chair of the Faculty Appointments Committee.

Expand SCOTUS

Below is a series of tweets from my daughter, exec director of Take Back the Court, about the recent series of disastrous SCOTUS opinions and why the only solution is to expand the court:

From: sarah lipton-lubet
Sent: Friday, July 1, 2022 1:14 PM

I hesitate to try to wrap up this term, when so many of its devastating effects are just starting to be felt. But here it goes. 

The Supreme Court is now about the raw exercise of right-wing power. 1/?

Republicans are using the court to unleash a revolution. They’re taking a sledgehammer to every principle & precedent of the last century that had been moving us slowly toward a society where women, POC, LGBTQ+, religious minorities & others had a shot at equality. 

They want to tear it *all* down. And they’re doing it at breakneck speed. Abortion rights. Voting rights. Climate justice. Separation of church and state. Gun violence prevention. Gone, gone, gone, gone, gone.

The Supreme Court’s “decisions” (b/c what they’re doing here is not law, as we used to understand it) are indistinguishable from Republicans’ war on women, on LGBTQ+ families, on BIOPC communities. *It is the same war.* The court is now simply a weapon Republicans are wielding.

I’ll say it again: #scotus is a Republican weapon. It’s not lofty, it’s not principled, it’s not some fantastical palace of reason. It’s raw, reactionary, political power.  If our elected leaders refuse to reckon with that, we’ll never understand the terrain we’re fighting on.

For folks who think that the effort to #ExpandTheCourt is radical - it’s actually the *least* radical thing we could do right now. We’re talking about passing a piece of legislation to set the size of the court as contemplated in the constitution. It’s literally Congress’s job. 

When 6 unelected extremists are casting aside all norms and precedent and the rule of law to catapult us back to the 1800s - honestly, what could be more measured and reasonable than court expansion.

Supreme Court justices aren’t kings. They don’t get to rule us without our consent. Join the movement to #ExpandTheCourt at https://www.takebackthecourt.today/. 

UC Davis School of Law Seeks Entry and Lateral Faculty

This just in:

University of California, Davis School of Law invites applications from both entry-level and experienced candidates for possibly several positions to begin July 1, 2023. Our hiring goals are flexible, but we have especially strong teaching needs in intellectual property, evidence, and international law, in addition to classes in the first- year curriculum. We seek candidates with scholarly distinction or promise, as well as a commitment to excellence in teaching. Candidates must hold a J.D., Ph.D., or equivalent degree by the date of their application. All candidates must apply through the UC Recruit system at the following link: https://recruit.ucdavis.edu/JPF05036.

For full consideration, applicants should apply by September 1, 2022, although we recommend that you submit your materials at your earliest convenience. We require a cover letter, curriculum vitae, research agenda, writing sample, as well as teaching evaluations and/or transcripts and contact information for three references. Candidates must also include a Statement of Contributions to Diversity, Equity, and Inclusion. Information about the Statement can be found at http://academicaffairs.ucdavis.edu/diversity/equity_inclusion/diversity_statements_writing.html. Please note that we may require further documentation at a future date, including, but not limited to, letters of recommendation, which will be treated as confidential under University of California Policy and California state law.

Please direct questions to Professor Brian Soucek, Chair of the Faculty Appointments Committee, by email at facultyappointments@law.ucdavis.edu. Inquiries about visiting positions should be submitted to Senior Associate Dean for Academic Affairs Afra Afsharipour, also at facultyappointments@law.ucdavis.edu.

The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity and expression, national origin, disability, age, marital status, citizenship, protected veteran status, or other protected categories covered by the UC nondiscrimination policy, available at http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct. 

CFP Mercer L.Rev: Legal Narratives and Justice

This just in:

Mercer Law Review seeks papers and proposals for its Annual Symposium. This year’s Symposium, Past is Prologue: Legal Narratives and the Law’s Potential for Justice and Injustice, focuses on conflicting legal narratives in briefs, judicial decisions, press accounts, and conventional wisdom. The Symposium will be held October 7, 2022 with proposals due on or before July 31, 2022. Proceedings from the Symposium are published in the Lead Articles edition from of the Mercer Law Review.

More information, including contact information and a submission form, is contained in the call for proposals.

Why Are Laws So Long and Complicated?

My new essay for The Hill is more explanatory than opinionated, as I figured everyone could use a break from the raging political disputes (and because syndicated columnists are already covering pretty much anything I have to say about the flood of SCOTUS opinions).

Here is the gist:

Why are laws so long and complicated?

by Steven Lubet, Opinion Contributor - 06/29/22 8:00 AM ET

It is certainly true that legislators tend toward verbosity, but there are often good reasons for laws to be as long as they are.  A recent example is the 81-page Bipartisan Safer Communities Act, just signed by President Biden, which, among other things, closes the notorious “boyfriend loophole” in the law limiting gun possession by convicted domestic abusers.

As originally written, a federal law prohibited access to firearms by a person who had been “convicted of a misdemeanor crime of domestic violence,” but only if they were a “current or former spouse, parent, or guardian of the victim [or] a person who is cohabiting with or has cohabited with the victim,” or with whom they have a child. That left a glaring exception for certain domestic abusers who had never married, parented with or lived with their victims. (A different law makes it illegal for any convicted felon to possess a firearm.) Although expanding the law might seem like an easy fix, it turns out to be not quite so simple.

Marriage, parenthood and cohabitation all have plain legal meanings, but less determinate relationships can be just as abusive and therefore in need of protection. The drafters of the Bipartisan Safer Communities Act settled upon “current or recent former dating relationship” as the operative term to plug the loophole, but that was only the beginning. After all, what constitutes a “dating relationship”?

Consequently, closing the boyfriend loophole required two pages of definitions, explanations and limitations.

Eliminating the boyfriend loophole is only one part of the Bipartisan Safer Communities Act. Some of its more extensive provisions include funding for states to establish crisis intervention orders and violence prevention initiatives, additions to the Instant Criminal Background Check System, improved classification of federally licensed firearms dealers, access to juvenile court records for firearms purchasers under 21, new penalties for “straw purchasers,” incentives for state “red flag” laws, funding for 11 different community-based mental health services and funding for improved school safety measures.

Because they were the product of intense negotiations between Republicans and Democrats, each of these provisions had to be set out with great specificity, describing the programs, goals and limitations for funding, penalties for violations, lines of authority, means of implementation and, of course, definitions for dozens of terms.

It can be frustrating even for lawyers that statutes are so long and complex. But shorter statutes would inevitably result in additional gaps, ambiguities and unintended consequences — such as the one that led to the boyfriend loophole in the first place.

You can read the entire essay at The Hill,

Oklahoma Law Seeks Entry and Lateral Faculty

This just in:

The University of Oklahoma College of Law seeks outstanding applicants, entry-level or lateral, for up to three full-time tenure-track positions beginning fall 2023. We welcome candidates in all subject areas, with particular interest in filling curricular needs in tax, patents, wills & trusts, evidence, civil procedure, antitrust, and alternative dispute resolution (ADR). 

OU Law is a high-quality, affordable, and forward-looking institution committed to developing a socially-involved and inclusive legal profession. We boast world-class facilities and a diverse student body. Our strong national reputation is buttressed by a commitment to attracting and supporting excellent faculty with summer research grants, publication placement bonuses, course reductions based on productivity, and an extraordinary number of endowed positions.

Our law school sits on the main OU campus in Norman, a university town alive with entertainment, arts, food, and sports. A perennial “best place to live,” Norman has excellent public schools and low cost-of-living. Neighboring Oklahoma City features a dynamic economy, outstanding cultural venues, and a major airport. Visit http://www.ou.edu/flipbook and http://soonerway.ou.edu for more information.

Qualifications

 Must have a J.D. or equivalent academic degree.

1. Must have strong academic credentials.
2. Must have a commitment to excellence in teaching and demonstrably outstanding potential for scholarship.

Application Instructions

 To apply, please submit a CV and job-talk paper to oulawhiring@ou.edu. Cover letter optional. If selected for an interview, teaching evaluations will be requested if available. Application review will begin immediately, and the positions will remain open until filled.

Equal Employment Opportunity Statement

 The University of Oklahoma, in compliance with all applicable federal and state laws and regulations, does not discriminate on the basis of race, color, national origin, sex, sexual orientation, genetic information, gender identity, gender expression, age, religion, disability, political beliefs, or status as a veteran in any of its policies, practices, or procedures. This includes, but is not limited to: admissions, employment, financial aid, housing, services in educational programs or activities, or health care services that the University operates or provides.

Diversity Statement

The University of Oklahoma is committed to achieving a diverse, equitable and inclusive university community by recognizing each person's unique contributions, background, and perspectives. The University of Oklahoma strives to cultivate a sense of belonging and emotional support for all, recognizing that fostering an inclusive environment for all is vital in the pursuit of academic and inclusive excellence in all aspects of our institutional mission.

Pseudonymous Conflicts of Interest

Eugene Volokh has done a long series of posts about litigants' requests to proceed under pseudonyms -- sometimes granted, usually denied -- many of which have been in litigation over various vaccination requirements. I tend to agree with Eugene's view that permission for anonymous litigation should be allowed only rarely, but I did succeed in obtaining such an order many years decades ago in juvenile case. At the time, Illinois had a bizarre rule that require anonymity for juveniles at trial, but not appeal. The intermediate appellate court initially upheld the distinction, but I convinced the Illinois Supreme Court to reverse.

Issues of anonymous litigation are not always self-contained. Consider the following paragraph in an order denying leave to proceed anonymously -- from Eugene's most recent post -- in which 22 of the original 39 plaintiffs dropped their anonymity request after the court ordered them to file detailed affidavits. The remaining group alleged, among other reasons, that they would face vilification if their names were disclosed:

Further, the record evidence here simply does not support the vilification that Plaintiffs allege they will face. Notably, 39 Plaintiffs proceeded forth with this lawsuit with a generalized concern of workplace retaliation for their choice to not receive the COVID-19 vaccination. And just four months after filing their Complaint, more than half of the original Plaintiffs decided that they no longer desired to proceed anonymously. This significant reduction in the number of Plaintiffs seeking to proceed under pseudonyms weighs against Plaintiffs' claim that there is stigma associated being unvaccinated as a federal employee or contractor.

So one group of plaintiffs undermined the anonymity request of another group. I have to wonder whether the attorneys disclosed this conflict-of-interest possibility when they signed up multiple plaintiffs. I’m betting they did not. I asked some friends in the legal ethics professoriate whether the losing plaintiffs, now forced either to identify themselves or drop the suit, have a cause of action against their lawyers.

Here is one response:

Interesting issue. I bet they (the lawyers) did not [disclose].  But what are the damages? Right? Depends on the viability of the underlying claim.

And my reply:

The lawyers are in a tough position. The clients will either have to drop their claim (thus either accepting vaccinations or losing their jobs) or proceed non-anonymously (thus exposing themselves to vilification). The lawyers have already alleged that either alternative would be damaging to their own clients. To defend against liability, they will have to claim that their original allegations were untrue or unprovable. That’s not uncommon in legal malpractice defense – “yes, we screwed up, but the case was a loser” – but still awkward, to say the least.

Joint representation of 39 individual clients can be a conflicts-of-interest minefield, even when it initially seems that they are all in accord.  Even if it appears that everyone ultimately wants the same thing, their may be latent conflicts about how to get there. It is the lawyers' job to identify and disclose, as an aspect of informed consent, before proceeding.

Kidneys For Sale in Iran: Market Design Blog

Via Al Roth's Market Design Blog:

Just published in Transplant International (which is the journal of the European Society for Organ Transplantation), is a paper describing the Iranian market for kidneys in the city of Mashad, and three commentaries on it.  

 Here's the original paper:

Kidneys for Sale: Empirical Evidence From Iran  by Tannaz Moeindarbari and Mehdi Feizi

And here are three short commentaries.

Kidneys for Sale? A Commentary on Moeindarbari’s and Feizi’s Study on the Iranian Model  by Frederike Ambagtsheer1, Sean Columb, Meteb M. AlBugami, and Ninoslav Ivanovski

Kidneys for Sale: Are We There Yet? (Commentary on Kidneys for Sale: Empirical Evidence From Iran) by Kyle R. Jackson, Christine E. Haugen, and Dorry L. Segev

Criminal, Legal, and Ethical Kidney Donation and Transplantation: A Conceptual Framework to Enable Innovation  by Alvin E. Roth, Ignazio R. Marino, Kimberly D. Krawiec and Michael A. Rees

***********

The commentary by Roth, Marino, Krawiec and Rees contrasts the legal Iranian market with the dangerous black markets that operate elsewhere, outside of regular medical institutions.

Here's a recent long article that pulls together much of the discussion on compensation for donors and on sale of kidneys and transplant black markets:

Organ Trafficking, Can the illicit trade be stopped? By Sarah Glazer,  CQ Researcher, June 24, 2022 – Volume 32, Issue 22

HT: Frank McCormick

 

On Abortion, John Roberts Stands Alone

Friend of the blog David Garrow has a Dobbs oped in today's Wall Street Journal. Here is the gist:

The chief argues that what should be preserved from Roe and Casey is “a reasonable opportunity to choose” an abortion for any woman who wants one. “Roe adopted two distinct rules of constitutional law,” he writes. “One, that a woman has the right to choose to terminate a pregnancy; two, that such a right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb. The latter is obviously distinct from the former,” he writes, stressing that “there is nothing inherent in the right to choose that requires it to extend to viability . . . so long as a real choice is provided.”

The heart of the Alito majority is most visible in its assertion that Chief Justice Roberts’s “quest for a middle way would only put off the day when we would be forced to confront the question we now decide”—that the tsunami of state legislation challenging any partial preservation of the precedents would intensify, and “the turmoil wrought by Roe and Casey would be prolonged.”

In an important footnote, Justice Kavanaugh adds that “Casey adopted a special stare decisis principle with respect to Roe based on the idea of resolving the national controversy.” Thus, “the continued and significant opposition to Roe”—26 states asked for its overruling in Dobbs—“is relevant to assessing Casey on its own terms” and concluding that the Casey trio failed.

You can read the entire essay here. It is paywalled, but a one-time code is available for free access.

Washburn LR CFP: Climate Change, Environmental Law and Natural Resources Law

This just in:

The Washburn Law Journal is soliciting articles for Issue I, Volume 62 of the Journal. The lead Essay for the issue is written by Professor Daniel Bodansky and discusses the UN climate change regime, the Paris Agreement, and COP 26. Each year, Washburn University School of Law invites a distinguished scholar to present the Foulston Siefkin Lecture. This year, Professor Bodansky—a Regents’ Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University—presented “The UN Climate Change Regime Thirty Years On—A Retrospective and Assessment.” (His presentation can be found at the following link: https://www.youtube.com/watch?v=9DSCV5w2q9E).

Articles chosen for publication will be published in December 2022. Articles must discuss climate change, environmental law, or natural resource law to be accepted for publication. Authors may email articles to journalarticles@washburn.edu with the subject line “WLJ Call for Papers.” Authors must include a full draft of their article, cover letter, and a curriculum vitae with their submissions. Articles must be a minimum of 10,000 words and no more than 30,000 words. Submissions will be accepted until August 1, 2022. The Journal will extend offers for publication to selected authors no later than August 22, 2022. A limited number of publications will be chosen for publication.

If you have any questions, please reach out to the Editor-in-Chief, Marisa No at marisa.no@washburn.edu or the Senior Articles Editor, Elisabeth Wilder at elisabeth.wilder@washburn.edu.