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November 02, 2009


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Orin Kerr

"I do know that the plaintiffs have retained an excellent attorney, Lynne Bernabei out of D.C., which I assume is a proxy for something."

Dan, what do you think it is a proxy for? Elite connections? The settlement practices of universities in high-profile litigation?


"Who knows whether these decisions were justified. There isn't enough in this story to draw any conclusions."

Dan, look at the numbers. I think they speak for themselves. This kind of tenure denial rate is almost per se unjustifiable. Add in the disparate impact of the gender disparity, and it's pretty clear that there's not only a war on junior faculty taking place at DePaul, but a war on women too. I hope entry level candidates boycott De Paul.

Dan Filler

Orin, good question. I take it that an excellent plaintiff's attorney will take a case (and take it public, in this fashion) if: a) the case appears strong to her; b) the case would make an important public statement (keeping in mind that a weak case is unlikely to do so); c) the payout is so large that even if the case is weak, the risk is worth it (which is unlikely to be true in most employment discrimination cases - this is more likely in mega-torts); d) maybe, elite connections (but query whether it would be worth assuming the personal risk of a train wreck if the case is weak.) Im sure there are other reasons as well, including settlement practices in similar situations. But in general, in the employment law context, my own sense is that top lawyers scrutinize a case pretty closely - for both financial and reputational reasons. That doesn't mean this is a winner, but it does suggest that the case isn't utterly groundless. Perhaps Bernabei believes, as Doubter suggests, these numbers speak for themselves.

Orin Kerr

Thanks for the response, Dan. I guess I don't know enough about how Lynne Bernabei chooses her cases to have a view one way or the other based merely on the fact that she had chosen to work on the case.


When I graduated from DePaul in 2006, the highest level body denied a famous and controversial professor Norman Finkelstein after viscous attacks from Alan Dershowitz of Harvard, who used his resources and influences to affect Finkelstein's career. I can't believe this is happening again at DePaul but to women. This is sick I wish I never graduated from there its so embarrassing.


Oh, BTW, I think Finkelstein's lawyer was Lynne Bernabei as well. So this will be the second time in 2 years she is representing clients against DePaul. I just found a video of Bernabei and Finkelstein doing an interview in 2007.

Jaime Hovey

In case you're interested about the merits, five (out of seven) of these tenure decisions were overturned at the top, and four of these were women. This means that five out of these seven were voted to tenure by their departments and by their colleges, and only denied tenure because the very top--the University Board--voted to completely overturn and disregard the judgment of the lower levels of review, levels constituting the academic departments, peers, and colleagues of these candidates.

These lower levels were the most qualified to evaluate the candidates, since the University Board has no members qualified to evaluate the work these candidates published/performed. Moreover, they did NOT look at the materials from the candidates at all, but merely considered the lower-level decisions and decided to overturn them. And of these five major and shocking overturns, four were women.

The numbers look even worse, I think, if you know this stuff.

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