The Faculty Lounge

Liberty Law Receives Full ABA Accreditation

Kudos to our friends at Liberty University School of Law, which received full ABA accreditation in recent days.  My personal congrats go out to founding dean Bruce Green.

Law Dean Named as Trustee of Disaster Fund

Kent Syverud (pictured), law dean at Washington University, has been named a trustee of the  Deepwater Horizon Oil Spill Trust, established to address claims arising from the recent disaster in the Gulf of Mexico.  Syverud will be joined by co-trustee John Martin, a retired federal district judge (SDNY).   Citigroup will serve as the corporate trustee.  BP recently paid $3 billion into the fund and is scheduled to deposit an additional $2 billion in the fourth quarter, followed by quarterly payments of $1.25 billion until the aggregate payments equal $20 billion.

Additional reading here and here.

When Birthright Citizenship was last "Reconsidered": REGAN v. KING and Asian Americans Part V

The case of Regan v. King was set down for oral argument before the 9^th Circuit Court of Appeals sitting “en banc” (that is, by all seven judges). Ironically, the day chosen for the hearing was February 19, 1943, the very same day the Court considered the appeals in the "Japanese internment" cases of Korematsu, Hirabayashi, and Yasui, in which Nisei plaintiffs challenged Executive Order 9066. US Webb made a 30-minute presentation of his appeal. He again stated that “without committing treason” it was his contention that Wong Kim Ark had been “erroneously decided.” Having presented his case, Webb left the podium. Walter Dodd then rose to take the defense case, with A.L. Wirin waiting to present the JACL position afterwards. However, no sooner had Webb completed his argument than the judges, instead of taking a recess, put their heads together in hasty conference.After a few minutes, Judge Curtis proclaimed on behalf of the court, “It is not necessary for the court to hear further argument. The decision of the lower court is sustained.” The Court then immediately called the case of Hirabayashi and Korematsu, which occupied the rest of the day’s proceedings.

The Native Sons continued their campaign for exclusion, and planned an appeal to the U.S. Supreme Court. Their petition was publicly supported on the floor of Congress by Tennessee Senator Tom Stewart, who had previously introduced legislation to confine Japanese Americans in military prisons for the duration of the war. calling for the Court to take jurisdiction of the case and overturn the “unsound” Wong Kim Ark decision. Japanese in the United States, he insisted, “Haven’t got the American ideal, and never can have” since treachery, deception and arrogance are “inborn characteristics of the race." U.S. Webb’s petition for certiorari to the Supreme Court was filed on April 28, 1943. However, on May 17, less than a week after it heard argument in the Hirabayashi and Yasui cases, the High Court refused the petition. The Regan case was dead.

When Birthright Citizenship was last "Reconsidered": REGAN v. KING and Asian Americans Part IV

The Native Sons appeal in the Regan case catalyzed the intervention in the case of a notable pair of new players, the Japanese American Citizens League and the NAACP. At that point, the JACL, the largest prewar Nisei organization, was financially strapped and embattled—from the outside by mass removal, and inside the Japanese community by its reluctant decision to offer the federal government its assistance. Although the JACL did speak out against attempts to restrict permanent citizenship rights of japaense Americans, they did not consider taking part in the Regan case until the organization held a Special Emergency National Conference in Salt Lake City in November 17-24, 1942. A.L. Wirin of the Southern California ACLU (a notable civil rights lawyer who had left his previous law firm in order to defend Japanese Americans in court cases) gave an update on the various test cases challenging Executive Order 9066. Wirin spoke briefly about Regan, and suggested that in case of an appeal the JACL might want to intervene. Soon after, the JACL approved the preparation of an amicus (friend of the court) brief in opposition to the Native Sons by National President Saburo Kido and past president Walter Tsukamoto. However, both Kido and Tsukamoto were confined in government camps, far from law libraries and proper office facilities. Thus, doubtless at Wirin’s suggestion, they reached out to Hugh MacBeth, a maverick African American attorney from Los Angeles who had served as director of the California Race Relations Commission, and had been an outstanding defender of Japanese Americans (For more on MacBeth, see http://www.blackpast.org/?q=perspectives/defending-nikkei-hugh-macbeth-and-japanese-american-internment) MacBeth not only agreed to work with the JACL, but in turn recruited the NAACP’s Southern California branch president, Thomas L. Griffith.  (African American lawyer Loren Miller, who frequently worked with the NAACP, signed another amicus, from the National Lawyers Guild)

A Final Thought on McDonald v. Chicago

I appreciate the opportunity I had earlier last month to share with you my thoughts on the voting paradox of McDonald v. Chicago.  Those posts (and a few other thoughts) turned into a short essay that the George Washington Law Review's online supplement, Arguendo, is going to publish in a few weeks.

Thanks to Dan's generosity, I'm going to stick around here and post on a few other topics in the near future, but I want to close what I've written about McDonald with a post about an unrelated aspect of the case.

Right after the case was decided, Alison LaCroix posted over at SCOTUSblog about the Court's misuse of history in McDonald.  One criticism she had was that the plurality, ostensibly using an originalist method of constitutional interpretation, rejected the holding from two cases decided immediately following the adoption of the Fourteenth Amendment.  She wrote:  "Cruikshank and Presser were decided in 1876 and 1886, respectively, putting them roughly in moment (2): the Reconstruction period.  Yet the Court rejects the possibility that the cases might offer any insight on the question before it, even as it seizes on congressional debates from no more than a decade before as objective evidence of late-nineteenth-century original meaning."

I think she's right in pointing out this peculiarity, given the plurality's insistence on originalism.  What I want to point to in this post is a passage from United States v. Morrison (2000), in which the conservative majority used the exact opposite reasoning to justify its position.  For those who don't recall every aspect of the case, Morrison is not only a case about the Commerce Clause but also about Section Five of the Fourteenth Amendment.  The Court was asked to find that Section Five allowed Congress to regulate private actions, not just state action.  The Court had rejected that conclusion in 1883's Civil Rights Cases.  Here's what the Court had to say about revisiting the Civil Rights Cases:

"The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur–and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment."

Thus, in 2000, the fact that an 1883 case was decided by Justices familiar with the Fourteenth Amendment's adoption was good reason for the Court to treat their decision as binding precedent.  But, in 2010, the fact that two decisions by roughly the same set of Justices were close in time to the adoption of the Fourteenth Amendment was rejected as a good reason to adhere to those precedents.

Of the Justices in the plurality of McDonald, only Justices Scalia and Kennedy were a part of the Court majority in Morrison.  Justice Thomas's separate opinion in McDonald also rejects Cruikshank and Presser, and he was part of the majority in Morrison as well, so we'll add him for these purposes and ask the following question:

Are they being at all consistent in these two cases -- rejecting roughly-contemporaneous Court interpretations in McDonald but using the same in Morrison to justify adhering to precedent?

When Birthright Citizenship was last "Reconsidered": REGAN v. KING and Asian Americans Part II

Before I go on to speak about Regan, a little recap on the current situation may be in order: In April 2010 the state of Arizona enacted a law that, among other provisions, required police to determine the immigration status of those whom they lawfully stopped, in case they were in the country illegally. It also made it a state crime for immigrants not to carry documents, thus placing on them the burden of proof that they were present legally in the United States. While the Arizona law formally forbade racial profiling in the search for illegal immigrants, its understood target is Hispanics, who comprise the vast majority of the state’s immigrants. These central provisions of the Arizona law were challenged by the Obama administration. In July 2010 the central provisions of the law were blocked by U.S. District Court judge Susan Bolton, and the state is enjoined from enforcing them during its appeal.  The controversy over the law testifies to the existence of an ugly anti-immigrant mood in the country. Indeed, even in its initial form, which permitted racial profiling, the Arizona law was widely hailed by commentators and public opinion polls across the country, and legislators in other states began drawing up similar legislation.  

One byproduct of the Arizona legal campaign and the demonizing of immigrants has been a backlash over citizenship. In July 2010 Arizona state senator Russell Pearce proposed a new state statute to strip citizenship from the children of illegal aliens. Legal commentators immediately responded that such a law would be blatantly unconstitutional under the 14^th Amendment, which provides that all persons born or naturalized in the United States are citizens. Rather than derailing the idea, the constitutional argument only inflamed it. In the following weeks, leading Republicans began to call for repeal or reinterpretation of the Amendment’s provisions, beginning with US Senators John Kyl of Arizona and Lindsay Graham of South Carolina, and then Senate Minority leader Mitch McConnell. On August 3^rd, 2010, McConnell called for hearings on repealing birthright citizenship. Along with Kyle and Graham, he pointed to the supposed practice of foreign couples traveling to the US to give birth, in order to endow their children with US Citizenship.  (In fact such visits are rare, for the very good reason that they are not of immediate benefit to the parents--children can not sponsor their relatives for legal residency before they turn 21). On August 3^rd, 2010, Five days later, House Minority Leader John Boehner joined McConnell, stating that he was open to either amending the U.S. Constitution or the interpretation of its provisions. "In certain parts of our country, clearly our schools, our hospitals are being overrun by illegal immigrants -- a lot of whom came here just so their children could become U.S. citizens." 

Hiring Needs: Charlotte School of Law

Our friends at the Charlotte School of Law have posted an announcement concerning hiring needs in the areas of Business Associations, Civil Procedure, Commercial Law, Contracts, Criminal Law, Criminal Procedure, Evidence, Property, Torts, and Wills & Estates.  You'll find more details here.

When Birthright Citizenship was last "Reconsidered": REGAN v. KING and Asian Americans Part III

How did Regan come about? As is well known, during Spring 1942 over 100,000 Japanese Americans living across the Pacific Coast were removed from their homes by the US Army, under authority of Executive Order 9066, and placed in a series of holding areas, the “Assembly Centers,” than shipped inland for confinement in a network of 10 government camps. In the wake of these official actions the Native Sons of the Golden West, a California nativist fraternity that had led the prewar movement for Japanese exclusion, threw themselves into action. In May 1942, their 65^th Grand Parlor (i.e. convention) met at Hoberg’s resort. The keynote speech was delivered by U.S. Webb, who had served as California Attorney General for 36 years. After calling for the full prosecution of the Pacific War, Webb turned t his real motivation for action: “The productivity of the Japanese constitutes a definite threat which must be obviated by a reinterpretation of the constitution or a constitutional amendment.” The convention officially resolved to have the incoming Grand President, Lloyd Congrove, create a committee of five persons to raise money “first to prosecute, then to carry through to the  Supreme Court of the United States, if necessary, a suit challenging the United States citizenship of the Japanese; and second to draft and sponsor an amendment to the Constitution of the United States which shall have for its object the exclusion of all persons of Japanese ancestry from American citizenship."

In addition to the prestige lent the case by the presence of U.S. Webb, the 9-term state Attorney General, the Native Sons’ campaign received important backing from the incumbent Attorney General, future U.S. Chief Justice Earl Warren. According to an account in the OAKLAND TRIBUNE, in his banquet speech at the Native Sons Grand Parlor Warren pledged support: "Warren stated he strongly favored prosecution of the suits now pending in the federal courts to determine if any Japanese can become a citizen and vote. Warren said further action depends upon new interpretation of the law by higher courts which now makes (sic) it possible for Japanese to hold property and vote. Following the judicial determination, other methods will be studied to meet the situation, he said

Warren then served as keynote speaker at the Native Daughters convention in which the resolutions of support were voted.

To be sure, Warren’s endorsement was limited. Unlike Webb, he justified action on the basis of security and not race. Also, he did not approve any constitutional amendment—he called only for “study” of other methods should a test case fail. After the convention, he refused to discuss the matter. A fair conclusion is that Warren, who had announced in April his candidacy for governor (to which he was elected that fall), made a single hedged statement supporting the suit as a necessary profession of faith to retain the political support of the Native Sons, long his chief backers. Still, as the state’s chief law enforcement official, Warren lent quasiofficial status to the lawsuit.

When Birthright Citizenship was last "Reconsidered": REGAN v. KING and Asian Americans

I have asked to post here to provide a historical look at the current controversies over race, immigration, and birthright citizenship. My intention is to explore the subject through the prism of the1942-3 legal case Regan v. King (134 F2d 413, 319 U.S. 753), in which West Coast nativists from the American Legion and the Native Sons of the Golden West, with semiofficial support from the State of California, brought suit in federal court to disenfranchise Nisei (American citizens of Japanese origin). Arising in the wake of Executive Order 9066, the lawsuit exhorted the government to extend its wartime removal of Japanese Americans from the region by barring Nisei from voting, at least for the duration. Yet the lawsuit against the Nisei voters was intended as but an opening step: the petitioners publicly announced that their larger goal was to overturn the 1898 U.S. Supreme Court case of Wong Kim Ark, which had enshrined the principle of automatic birthright citizenship for all persons born in the United States. Their openly expressed purpose was to erase the citizenship of all Asian Americans, as descendants of “immigrants ineligible to citizenship” (and, indeed, people who had in many cases come to the United States in violation of Asian exclusion laws). The lawsuit thereby brought to an ultimate climax the longstanding campaign by nativists, informed by racism, against all Asian immigrants and their US-born children.  In response to the suit, lawyers from the American Civil Liberties Union, the Japanese American Citizens League and the NAACP, joining forces for the first time, rallied to defend fundamental citizenship rights. In the end, the suit was defeated at both the district and appellate court level. It is worth looking closely at the Regan case, as it not only established the basic constitutional rights of the Nisei in a climate of popular hostility against them, but reaffirmed the principle of birthright citizenship for all Americans, a constitutional guarantee that is once again being called into question.

Guest-blogger Greg Robinson

I'm pleased to introduce Greg Robinson, Associate Professor of History at l'Université du Québec À Montréal, as a guest-blogger.  Greg is, among other noteworthy things, one of the leading scholars on the removal and incarceration of people of Japanese ancestry in the Americas during the Second World War.  I say "the Americas" because one of Greg's most important contributions (particularly in his recent book "A Tragedy of Democracy") has been to push our understanding of the wartime treatment of people of Japanese ancestry across both the northern and southern borders of the United States.  Greg's first solo book, "By Order of the President," is a careful and nuanced study of the development of the incarceration policy in the Roosevelt administration and of Roosevelt's own attitudes toward Japanese Americans and their removal and detention.

Back in 2004, Greg and I undertook the somewhat quixotic task of publicly critiquing and rebutting Michelle Malkin's partisan revisionism in her book "In Defense of Internment," which purported to justify the forced removal and detention of Japanese Americans in service of her anti-Muslim domestic agenda.  That was the high point of my blogging career, and it was a joy to share it with Greg.  (And yes, I know what you're thinking:  my blogging career has all been downhill from there.)

Welcome, Greg.

The Law Blogs Should Be Happy Now

Returning to the subject of  my post of a few weeks back, "Happy Yet?" (which is about Nancy Levit and Douglas Linder's The Happy Lawyer)....  

Reading the ads in NYROB this afternoon I see something I've never seen before -- a law prof blog cited as the source of a review!  The OUP ad, which features David Strauss'  Living Constitution and Debra Satz' Why Should Things Not be For Sale, also features The Happy Lawyer and this marvelous quotation from Naomi Cahn's post over at concurring opinions back in June: 

A book that anyone who is--or was--or wants to be--a lawyer (or anyone who knows a lawyer) should read.

This is yet another milestone, I think, in the mainstreaming of law prof blogs.  And perhaps an important one, given how much NYROB is the arbiter of elite, academic culture.

Spongeworthiness: Wine Applications

 A few weeks ago, we blogged about the paper, An Option Value Problem from Seinfeld, by Avinash Dixit (Princeton University).  From this weekend’s Dear Economist (Tim Harford) column:

I have inherited six bottles of excellent wine, which I plan to consume, over time, on special occasions. But how do I know when to open a bottle when I don’t know what occasions lie ahead? I don’t want to use up all the bottles within a few months on mediocre occasions, but neither do I still want to be hoarding them until I die.

 

George Stevens

 

Dear George,

 

This is known as the “spongeworthiness” problem, after an episode of Seinfeld in which the contraceptive sponge is taken off the market. The character Elaine Benes stocks up with several hundred sponges, but then faces the same problem you do: how to decide whether a man is “spongeworthy”.

 

This is an option-value problem: every sponge or bottle consumed is one that cannot be used later. It has been solved by Avinash Dixit, a renowned game theorist and former president of the American Economic Association. (For some reason, Professor Dixit waited to finish his term of office before publishing his research on spongeworthiness.) Unless you are absurdly patient, you should open them more quickly than you might think.

 

Assuming you are patient enough to wait for a gain of 5 per cent a year – but not more – and if you have one possibly special occasion per month, Dixit calculates that you should open a bottle if you expect an occasion in the top 21 per cent of all possible occasions. As the number of bottles remaining shrinks, raise your standards. The last bottle should be consumed on an occasion in the top 9 per cent.

 

Of course, there is always the chance that an occasion is so special that you are tempted to open another bottle. Dixit’s analysis allows for this. After all, Elaine once told a lover that he couldn’t have a second bout: “Sorry, I can’t afford two of them.”

 

Global Free Speech Update

 

 

Malaysia:  protests marked the fiftieth anniversary of the Internal Security Act, an anti-communist measure passed in the 1960s that allows for virtually limitless detention without trial on quite meager grounds of suspicion. Predictably, dozens of protesters were arrested and charged with violating the ISA.

United States:  a federal judge dismissed a group of Texas cities from a lawsuit challenging the state’s open meeting laws. The judge ruled that municipalities do not enjoy First Amendment protection as such, and that the rationale for extending free speech rights to private corporations in Citizens United does not carry forward where public municipalities are concerned.

Somalia:  journalists are calling on the newly elected government to put forth a media reform bill that would liberalize broadcast licensing criteria, ensure judicial independence, and clamp down on violence and threats against journalists and broadcasters. Link here to the 2008 Media Sustainability Index Report for Somalia.

Europe:  The OSCE Representative on Freedom of the Media released it’s first regular report to the OSCE council in July. The report takes note of media developments in several OSCE states, and promises to give more attention to "the digital switchover in broadcasting and matters related to New Media."

-Kathleen Bergin

Hiroshima and the Enola Gay

Yesterday was the anniversary of the first atomic bomb blast, the one at Hiroshima.  The anniversary of the second, at Nagasaki, is on Monday.

The Enola Gay, the airplane that dropped the bomb on Hiroshima, is now displayed at the Udvar-Hazy Center, a branch of the Smithsonian Air and Space Museum in a beautiful facility very close to Dulles Airport outside of Washington, DC. 

This is what it looks like.

What struck me the most about the display of the Enola Gay was the absence of any mention of the many tens of thousands of civilian deaths the airplane's bomb inflicted, or of the reasons for the dropping of the bomb.  What you see below is the entirety of the interpretation the museum offers about the Enola Gay. (Click on the photo for a readable version.)

 

Back in the 1990s, plans to show the Enola Gay at the downtown branch of the Air and Space Museum as the focal point for an exhibit about the end of World War II and the beginnings of the Cold War were scrapped after veterans' groups and others complained that the exhibit insultingly placed too much emphasis on the sufferings of the bomb's victims.  The story of that controversy is well told, and insightfully analyzed from various perspectives, in the book History Wars: The Enola Gay and Other Battles for the American Past.

As one might expect, the narrative we Americans grow up with about the bomb -- that it was a weapon of last resort deployed as the only way to force Japan to surrender without American ground troops having to fight their way from suicidal Japanese village to suicidal Japanese village -- is incomplete.  That narrative misses, among other things, the Roosevelt and Truman administrations' desire to gain strategic advantages of various kinds against the Soviet Union.  And it obscures the ways in which the American military set up Hiroshima and Nagasaki as atomic testing grounds, sparing both cities the conventional bombs that were raining down on other Japanese cities so that the effects of the atomic blasts on these two cities could be better measured.

Of course, a single reading rail at an airplane museum is not a good place to delve into these complexities.

But that just shows that the Enola Gay should not be on display at an airplane museum as just another flying machine.  Displaying the Enola Gay as just another item in an airplane museum is like displaying the Declaration of Independence as just another item in a museum on the history of printing.

Baseball Trivia

Earlier this week Alex Rodriguez became the newest member of the 60o homer club.  He is the youngest player in MLB history to achieve the feat.   For some fascinating details, as well as comparisons with other members of the club, click here.

Today's question:  Can you identify the youngest and oldest members to join the 700 homer club?  The 600 homer club?  The 500 homer club?

Pictured:  Mel Ott (card #179 from the 2005 Upper Deck Artifacts set).  Ott, a member of the Hall of Fame, holds the record for being the youngest player to hit 100 home runs.

Does Greece Have The “Equipment”?

 I just came across this letter to the editor in Tuesday’s FT from my former colleague, John Orth:

Have the Greeks got what it takes?

Published: August 3 2010 03:21 | Last updated: August 3 2010 03:21

From Prof John V. Orth.

Sir, The illustration that accompanied your Analysis of Greece’s efforts at economic reform (“A marathon to sprint”, July 30) showed ancient Greek athletes with their genitals airbrushed away. Was this choice of illustration by any chance a pictorial comment on whether the current Greek government has the equipment necessary to bring about the needed changes?

 

John V. Orth,

Professor of Law,

University of North Carolina,

Chapel Hill, NC, US

I knew that there was a reason I always liked John.

Image source:  FT

Caption: Olympian challenge: an illustration from Victor Duruy’s 19th century ‘History of Greece’. Athens is today engaged in a race to bring its closed economy into the 21st century

Advice for New Law Profs

Two days ago (Wednesday) marked the AALS deadline for inclusion of a FAR form in the first distribution.  But before we turn our attention to those who are seeking a faculty appointment, let's not forget those who are joining our ranks this month.  Borrowing from a post last summer, here are some friendly words of free advice for those who are about to embark on the first chapter of their academic career: 

Friend, Lounge visitor, two-time law school dean, and UNLV professor Nancy Rapoport suggests:

1.  Read Peter Alexander's article, Silent Screams From Within The Academy: Let My People Grow, 59 Ohio St. L.J. 1311 (1998), which covers some of the pitfalls that plague newbies.

2.  Find a "blocker."  I know nothing about football.  But I know that there are people who block for other people on the field.  I had great blockers when I started my career at Ohio State (now the Moritz College of Law).  These folks looked out for me, said "no" for me when I was starting to get overcommitted, read my drafts, gave great teaching advice, and generally mentored me.  You need someone senior on the faculty who can block for you.

3.  There is no substitute for publishing.  Publishing is the coin of the realm in academia.  You do want to be a good teacher, and the best academics I know are great at teaching and at publishing--because the two complement each other.  But there is NO WAY TO GET TENURE without publishing good stuff. 

4.  That means that, as difficult as it will be to pull yourself away from other obligations (the not-so-"secret"-secret of teaching is that visiting with students is wholeheartedly rewarding), you must budget your time.  Block out some time for research and thinking, and write up a storm whenever you can. 

5.  Rapoport's rule of threes:  no good thought should go unpublished, and while you're at it, why not think about publishing a variant of the same thing for different audiences?  Publish articles (for tenure), op-eds on your ideas (for getting your ideas out there in the world generally), and bar journal short versions of your ideas (to have a good discourse with the practicing bar).  One of the goals for tenure is to show that you have a robust research agenda, but one of the goals for getting to be a full professor is that you're an expert in your field.  You get to be an expert by engaging in useful discourse with a wide variety of people, and you'll learn all sorts of good things for your research if you spend some time with non-academics.  It's a win-win.

One of Nancy's "buddies" suggests:  advise the newcomers NOT TO TALK DOWN TO THEIR STUDENTS even when called upon and they are unprepared - treat them as equal human beings.  Nancy agrees.  "At some point, if you're too aggressive, students stop listening and therefore stop learning."

Friend, co-Lounger, and Case Western Reserve law prof Jacqui Lipton offers this suggestion:  try to feel comfortable in your own skin. If colleagues and students see that you're nervous and anxious they can play on that (either consciously or more likely unconsciously) and then you end up just feeling worse about teaching and scholarship. So I say, just be yourself. If you don't know the answer to a question, say that you don't know and that you'll get back to the student when you do - or better yet, invite the student to find the answer for you and share it with the rest of the class. If your colleague has raised something about your teaching or scholarship that has floored you, thank him/her for the interesting advice/suggestion and say that you'll think on it. And then ask others for their opinions. But don't get fazed or ruffled. Just be yourself, enjoy your time in this crazy profession and make sure you find at least one "blocker"/mentor/whatever who you trust to help you out.  

And my own suggestion?  Give some thought to what your classroom rules and expectations will be, put them in writing, distribute them as a first-day handout, and then abide by them (and if you decide to change, do so the next semester, not in mid-semester).  Let this serve as a contract between you and your students. Matters that deserve your consideration include the following:

1. Recitation: random, assigned, panels, volunteers, etc.?

2. Attendance: taken, not taken? (If you don't take attendance, don't be surprised if at least one student decides to learn the material without your assistance. Do you care? Does your school policy dictate that you care?)

3. Exam format: essay, multiple choice, short-answer, drafting, combo? Closed book, open book, anything goes, no outside commercial outlines, etc.?

4. Office hours: appointment only, drop-ins welcome? Telephone conferences? Email chats?

5. Grade adjustments: none (final grade based solely on exam performance), adjustments based on in-class performance and/or attendance, etc.?

Also -- and this is challenging the first time you teach a course -- offer the students a [somewhat] detailed daily assignment schedule (something more than "stay twenty pages ahead of me"). You probably can't distribute an exhaustive schedule on the first day of class for the entire semester, but you probably can do so in two-week blocks.

Our "fan base" includes many experienced law professors.  I hope they will offer additional suggestions to those who will step behind the podium for the first time in a matter of days.

"Just Don't Take My Bentley!"

The tax man cometh.  Is it time to file a bankruptcy petition?

Story here.   Gotta love the concluding quote!

Social Justice in the Property Curriculum

It’s the end of summer, which means that most of us are turning our attention (sort of) to class prep.  For me there’s plenty left to do, but I’ve set aside some time for blogging after a longer than anticipated hiatus.

In addition to my regular stint here at the Lounge, I’m also guest blogging over at SALT this month, so have been giving some thought to their mission of "enhancing social justice within the curriculum."  This obviously brings to mind the typical "law and . . ." courses that tackle issues of social justice head-on, courses like Race and the Law, Women and the Law, Sexuality and the Law, etc., or the genre’s more "radical offspring," as I once heard someone describe it, Critical Race Theory.  But those of us who teach these classes also know there’s plenty of opportunity to address social justice issues in the core curriculum, where questions about fairness, equality, and subordination, are too often brushed aside.

Take the first year Property course, for example.  Most Property Profs cover the circumstances under which courts are able to force the sale of real property.  In July, the National Conference of Commissioners on Uniform State Laws approved the Uniform Partition of Heirs Property Act (UPHPA), which places conditions on a court’s ability to force a sale when multiple owners share an interest in the land.  These sales typically occur when the owners disagree on how to use the land, and there’s no practicable way to partition the land into functional plots.  The only way to resolve the dispute, conventional jurisprudence says, is to sell the land and distribute the proceeds proportionally to each owner according to their respective share.

I’m guessing most of us who own real property do so as sole owners, or as joint owners with one partner or spouse. But it’s not uncommon in rural communities for an entire generation of family members to share an interest in land.  Many African-American families in the rural South, for example, inherited property that an ancestor purchased decades ago, or perhaps more than a century ago as a freed slave.  If the original purchaser died without a will, the property likely got handed down in equal shares to the members of subsequent generations.  Eventually, hundreds of distant relatives who’ve never met could end up with an interest in a tract of land they’ve never seen or heard of.

So what’s the social justice angle?

Does the Equal Protection Clause Make Us A Fiddler on the Roof?

Perry v. Schwarzenegger is a very interesting read.  Highly recommended.

My favorite lines are these, on page 124 of the decision:   "Tradition alone ... cannot form a rational basis for a law. ... Rather, the state must have an interest apart from the fact of the tradition itself."

What an interesting thing to think about.